December 23, 2019

Dec 24, 2019

Two stories jumped out at me today because they illuminated larger ideas.

First is the discovery by Heidi Przybyla of NBC News that the morning of the infamous call between Trump and Ukraine President Volodymyr Zelensky, July 25, 2019, Trump tweeted about a Fox News poll claiming that the US was enjoying “best Economy in DECADES.” But Przybyla didn’t stop there. She looked at what else the poll said. It said that Biden had a “commanding” lead for the Democratic presidential nomination and that he would beat Trump by 10 points in a general election. An hour after Trump’s tweet, he pressed Zelensky to investigate Hunter Biden.

I love this, not because of the story, which remains sordid, but because it illustrates so well what historians do. Przybyla followed the trail of primary sources, and hit paydirt: evidence that explains just what was in front of Trump when he made that fateful request, and what he might have been thinking.

The second story is complicated, but worth untangling. In August, the House Judiciary Committee sued to make Donald McGahn, who had been Trump’s White House Counsel from January 2017 to October 2018, answer a subpoena for testimony about matters covered in the report of Special Counsel Robert Mueller. Last month, a judge said he had to answer the subpoena, so Department of Justice officials acting for McGahn appealed to the U.S. Court of Appeals for the DC Circuit.

On a parallel track, the House Judiciary Committee also sued to force the Department of Justice to release to it the materials Mueller’s grand jury collected, and a lower court agreed. The Justice Department appealed that, too.

After the impeachment vote last week, the courts asked both sides to brief them on how impeachment changed the cases, since the articles of impeachment do not address anything in the Mueller report, but instead focus just on the Ukraine scandal. Lawyers for the Department of Justice (who accept in their brief that impeachment is a done deal, by the way… so much for the idea it’s not done until it goes to the Senate) say there is no need for the court to rush a decision because the testimony and documents are no longer necessary. Lawyers for the Judiciary Committee disagreed, saying that the testimony and documents could well lead to more articles of impeachment, as well as legislation necessary to protect the 2020 election. A hearing is scheduled for early January.

But while the hint that there may be more articles of impeachment in the works is what will grab headlines, what caught my eye was to what extraordinary lengths the administration is going to stonewall Congress from conducting any oversight of its actions.

It is not wildly unusual for someone in an administration to refuse to answer a subpoena, usually on the grounds that to do so would intrude on executive privilege, the president’s need to be able to get information and make decisions in private without overbearing congressional intrusion that would hamper the ability to get free and full information. But Trump has simply declared that Congress cannot have any information at all, making a blanket declaration that Congress has no right to compel testimony from key White House advisors or to see documents.

This sets up a major conflict between two branches of government: the Legislative Branch, Congress, which has the duty of oversight and the need for information to write legislation (which is reflected above where the House Judiciary Committee says it needs to hear from McGahn so it can write new laws). The Executive Branch, overseen by the President, needs to be able to enforce the laws without interference from Congress. In the past, both branches tried to accommodate each other over these tensions to avoid a constitutional crisis. Congress would try not to subpoena material it knew would overstep its bounds; the White House tried to comply with subpoenas even when it suspected Congress was simply fishing for damaging information (which it’s not supposed to do). On the rare occasions when a White House denied testimony, the issue went to court and took so long to get resolved that it generally became moot. But Trump is simply declaring that he has the right to do whatever he wants, without oversight. It’s breathtaking.

And there is not much Congress can do to force the issue. If someone ignores a congressional subpoena, each house of Congress can vote that the person is in contempt of Congress. Theoretically, Congress could then send the sergeant-at-arms to make an arrest. This hasn’t been done for close to 100 years, and it would raise the hideous spectacle now of Congress trying to arrest a member of the Executive Branch. Imagine what Fox News personalities would do with that.

Congress could also try to bring criminal charges against the person ignoring the subpoena. There is a criminal law that deals specifically with this. But Congress would have to ask the U.S. Attorney for the District of Columbia, who oversees federal prosecutions, to pursue the case. The U.S. Attorney operates within the Department of Justice, overseen by Attorney General William Barr, who has an expansive view of Trump’s power and is unlikely to move against the administration.

To avoid such a conflict in the past, Congress instead tried to enforce a subpoena by bringing a civil lawsuit to make the person comply. That’s where we are now, litigating Congress’s subpoenas all the way to the Supreme Court. There are two downsides to this. The first is that the process takes a huge amount of time. Trump has been banking on this, trying to drag the process out until after the 2020 election, which would buy him four more years of protection since the Department of Justice has a policy (which has never been tested) that a sitting president cannot be indicted.

The second problem is what the Supreme Court will say. In the past, courts upheld Congress’s right to conduct oversight, and Trump has lost repeatedly in the lower courts. Now, though, with two Trump appointees on the Supreme Court, it is not clear how a final decision will swing. (And I do mean it's not clear, not that he will win. Lots of factors in play at the Supreme Court right now.)

So House Committees are taking the only step left to them: warning witnesses that failure to comply with a subpoena will be considered evidence of obstruction of Congress, which can be tied to a host of criminal laws. It was that pressure that opened a door for witnesses to ignore Trump’s blanket declaration that they must not testify.

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Notes: Przybyla: